Ferroequus Railway Co. v. Canadian National Railway Co., 2003 FCA 408

Date: 20031031

Docket: A-89-03

Citation: 2003 FCA 408

PRESENT:      NOËL J.A.

BETWEEN:

                                     FERROEQUUS RAILWAY COMPANY LIMITED

                                                                                                                                                       Appellant

                                                                                 and

                             CANADIAN NATIONAL RAILWAY COMPANY LIMITED

and THE CANADIAN TRANSPORTATION AGENCY

                                                                                                                                                   Respondent

and

CANADIAN PACIFIC RAILWAY COMPANY

                                                                                                                                                     Intervener

Motion dealt with in writing without appearance of parties.

                                    Order delivered at Ottawa, Ontario, on October 31, 2003.

REASONS FOR ORDER BY:                                                                                                   NOËL J.A.

Date: 20031031

Docket: A-89-03

Citation: 2003 FCA 408

PRESENT:      NOËL J.A.

BETWEEN:

                                     FERROEQUUS RAILWAY COMPANY LIMITED

                                                                                                                                                       Appellant

                                                                                 and

                             CANADIAN NATIONAL RAILWAY COMPANY LIMITED

and THE CANADIAN TRANSPORTATION AGENCY

                                                                                                                                                   Respondent

and

CANADIAN PACIFIC RAILWAY COMPANY

                                                                                                                                                     Intervener

                                                            REASONS FOR ORDER

NOËL J.A.

[1]                 The Canadian Wheat Board (CWB) seeks leave to intervene in the present appeal which is set to be heard in Vancouver on November 25 and 26, 2003. It seeks permission to file a memorandum, a draft of which was filed together with its leave application, and permission to make oral submissions at the hearing.

Background

[2]                 The decision under appeal was rendered by Canadian Transportation Agency (the Agency) on September 10, 2002. The Canadian Wheat Board (CWB) was an intervener in the proceeding leading up to this decision.

[3]                 Ferroequus Railway Company Limited (FE) sought leave to appeal on October 8, 2002. The CWB was an addressee of the Notice of Motion.

[4]                 On October 23, 2002, the CWB sent a letter to the Administrator of the Federal Court of Appeal stating that it did not intend to participate in the Motion for Leave to Appeal but reserved the right to request leave to "intervene in the appeal proceedings as its interests may require".

[5]                 On December 9, 2002, leave to appeal was granted and on February 14, 2003, FE served its Notice of Appeal under cover of a letter which was copied to the CWB.

[6]                 The Agency, Canadian National Railway Company (CN) and Canadian Pacific Railway Company (CPR) filed their Notices of Appearance on February 21, 27 and 28, 2003, respectively.

[7]                 The Appeal Books were agreed to and served on April 15, 2003. FE filed its memorandum of fact and law on May 14, 2003, and CN, CPR and the Agency filed their respective memoranda in response on June 13, 2003.

[8]                 The Requisition for Hearing was filed on June 27, 2003 and the hearing was set to be heard on November 25 and 26, 2003, in Vancouver.

[9]                 The CWB now seeks to intervene. Although the affidavit filed in support of the application asserts that the CWB always intended to intervene, nothing is stated to explain why the motion was left to be made at this late juncture.

[10]            The draft memorandum of fact and law filed by the CWB in conjunction with its motion has 100 paragraphs and raises the following issues:

(a) did the Canadian Transportation Agency err in law or jurisdiction:

i.     when it imposed a jurisdictional restriction in the form of conditions precedent to its exercise of its authority under s. 138 of the CTA, that are not contained in the statute? and/or

ii.     by fettering its discretion in making its decision solely on the alleged failure of the Applicant, FE to meet non-statutory conditions prior to the consideration of the public interest as a whole?

those conditions being that FE must be able to establish that:

A. there is a rate or service problem in the relevant markets,

B.    the problem is related to a lack of adequate and effective competition or existing or potential market abuse; and

C. the granting of regulated running rights will either eliminate or alleviate the problem.

(c) Further, or in the alternative, did the Agency err in law or jurisdiction by failing to take into account relevant considerations in its determination of the "public interest" as it is required to do under s. 138 of the CTA, in that the Agency failed to:

give effect to the shippers right, in this case the CWB, to choose the routing of its traffic, the carrier or combination of carriers that will carry its traffic and to obtain the best price for the movement of its traffic.

[11]            In addition to filing a memorandum of fact and law, the CWB asks permission to make oral submissions. No suggestion is made as to the time required.

[12]            Both CN and CP have filed extensive submissions opposing the intervention. FE has indicated its consent to the intervention but has not filed submissions in support of the application.

Analysis and Decision

[13]            Rule 109 of the Federal Court Rules, 1998, requires that a prospective intervenor show how its participation will assist the Court in the determination of the issues. This assistance must not merely be a reiteration of the position taken by a party, but rather must provide a different perspective. What is required is a "relevant and useful point of view which the initial parties cannot or will not present" (Abott v. Canada, [2000] 3 F.C. 482).

[14]            This assessment must be made in context. Specifically, CWB has to show that its potential contribution at least counterbalances the disruption which its late intervention might cause (Abott v. Canada, supra at paragraph 18). In this respect, I note that FE, in its requisition for hearing requested two days and was only allowed a day and one half. The cases assigned for Vancouver during the week of November 24 do not allow for any additional time and it is apparent, from CWB's draft memorandum, that it would require as much time as the intervener to make its oral submissions. The existing parties would also have to find the time to respond within the already restricted time frame.

[15]            Beyond asserting its significance as the largest shipper of grain in Canada, CWB has not demonstrated that it would bring to the appeal anything beyond what has already been made available to the Court by the parties. Specifically, it has not shown how its expertise in marketing grain is required for the proper determination of the issues placed before the Court by the parties.

[16]            Paragraphs 39 to 63 of CWB's draft memorandum are dedicated to the standard of review. CWB's status as a shipper does not provide it with a unique perspective with respect to the standard of review to be applied.

[17]            In paragraphs 91 to 100 of its draft memorandum, the CWB simply asserts its agreement with the dissenting opinion of Member Bennett, a matter that is fully canvassed by FE in its own memorandum.

[18]            The issue raised by the appeal is one of statutory interpretation. The CWB can claim no particular expertise in the interpretation of the Canada Transportation Act, S.C. 1996, c. 10 (the CTA). Although the CWB can provide the perspective of a grain shipper which admittedly differs from that of FE (a railway company), I do not believe that this perspective is required to fully explore the issues surrounding the interpretation of the CTA (section 138).

[19]            In short, the limited contribution which the CWB proposes to make is outweighed by the disruption which its intervention would likely cause if it was to be allowed at this late stage.

[20]            The application is dismissed with costs in favour of both CN and CP.

                         "Marc Noël"                          

J.A

.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:A-89-03

STYLE OF CAUSE:Ferroequus Railway Company Limited and Canadian

National Railway Company Limited and the Canadian Transportation Agency and Canadian Pacific Railway Company

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:Noël J.A.

DATED:October 31, 2003

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: